Absent an injunction issuing in one of the pending cases challenging the National Labor Relations Board’s Final Rule substantially revising its representation case procedures, the rules become effective April 14, 2015. The practical effect is that representation elections will be held in a shorter period of time, which reduces the ability of employers to educate their employees about the impact of unionization. Traditionally, uncontested elections were held within 42 days following the filing of a union petition for election. Although the NLRB has not issued any definitive statement as to the timing of elections under the new Final Rule, all indications are that this 42-day period will be cut almost in half.
This rule has a convoluted history. The NLRB had previously issued a controversial and substantially similar quickie election rule in December 2011. The rule was overturned by a federal court because the Board lacked a quorum at the time it issued the rule, and the Board issued a final rule rescinding the quickie election rule in January 2014. The following month, however, the Board re-issued a proposed quickie election rule. The new Final Rule, which takes effect on Tuesday, April 14, will apply to all representation cases filed on or after that date (pending R-cases will continue to be processed under the prior procedures).
The Final Rule provides as follows:
• Parties may now file or transmit documents electronically, rather than by using mail, hand-delivery, or fax. While parties may e-file using the NLRB’s e-filing system, emailing a Petition to an NLRB Agent does not constitute filing.
• When a union files a petition for a union election, it must serve on the employer a copy of the petition, along with the Board’s description of the new representation case procedures, and a Statement of Position form that identifies issues to be raised at the pre-election hearing. The NLRB Regional Director will serve a Notice of Petition for Election and Notice of Hearing on all parties, likely the same day as the petition was filed. The employer must then file its own Statement of Position form, generally by Noon of the business day before the hearing, identifying the issues it has with the Petition. The petitioner will respond to the issues in the employer’s Statement of Position at the beginning of the hearing. During the hearing, the parties will be limited to litigating only those issues that were raised in their Statements of Position or responses to the other’s Statement. However, NLRB jurisdiction cannot be waived at any point.
• At the same time the employer files its Statement of Position form, the employer must also file a list of prospective voters, with their job classifications, shifts and work locations. Previously, the list of eligible voters did not have to be supplied until after the Regional Director approved an election agreement or directed an election following a hearing.
• The employer must post a Notice of Petition for Election within two business days after being served by the Board. This posting provides more detailed information about the election and voting process to prospective voters.
• Pre-election hearings will generally be scheduled to begin 8 days after the Notice of Hearing is served on the parties. The Regional Director may postpone the hearing for up to 2 business days with a showing of special circumstances, or more if there is a showing of extraordinary circumstances.
• Generally, only those issues necessary to determine whether an election should be held will be heard in the pre-election hearing. Disputes concerning voter eligibility or inclusion, according to the Final Rule, do not have to be decided before the election, and may be heard post-election. This portion of the Final Rule will create uncertainty as to whether an employee is a “supervisor” or simply a leadperson.
• All parties may make a closing argument at the hearing. Written briefs, which were previously commonplace, will be permitted only if the NLRB Regional Director decides they are necessary. However, parties are encouraged to submit written arguments/case citations during the pre-election hearing.
• The employer must submit a final voter list, including phone numbers and e-mail addresses, to the union within two business days of the Regional Director’s approval of an election agreement or decision directing an election.
• Under the old rule, if a party seeks a Request for Review by the Board of a Regional Director’s decision, the election was delayed 25-30 days. The new rule provides that the election will not be stayed after the Regional Director issues a decision and direction of election, unless the Board orders otherwise.
• Post-election, each party may make a single post-election request for review of all pre-election rulings by the Regional Director.
• Post-election hearings on objections to conduct affecting the results of the election generally will begin 21 days after the tally of ballots is issued. Either party has up to 7 days after the tally to file objections.
• Post-election exceptions and requests for review will now be filed directly with the Regional Director, not the Board. The Board may deny review of post-election rulings by the Regional Director.
The NLRB has issued new Petition forms and Statement of Position forms, as well as suggested formats for the Initial List (submitted with Position Statement) and Voter List (submitted after Election Agreement is approved or election is directed. The NLRB has also issued various documents, as well as a General Counsel memorandum, providing detailed guidance on the new Rule.
What is the bottom line? NLRB elections may happen as soon as 15 – 20 days after the Notice of Petition is served on an employer. The time to make sure your employees understand the risks of unionization is prior to receiving the petition.